McDonald v. Chicago Oral arguments are scheduled for March 2, 2010 and NRA v. Chicago

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McDonald v. Chicago Oral arguments are scheduled for March 2, 2010 and NRA v. Chicago
 
 
Regulations Challenged
 
The NRA case is focused on the fact that Chicago's gun registration laws do not allow the registration of handguns.
McDonald challenges four broad aspects of Chicago's gun registration law, which, according to the plaintiffs:[12]
Prohibit the registration of handguns, thus effecting a broad handgun ban
Require that guns be registered prior to their acquisition by Chicago residents, which is not always feasible
Mandate that guns be re-registered on an annual basis, including the payment of a fee
Render any gun permanently non-registerable if its registration lapses
 
 
Legal Basis for Incorporation
 
All of the post-Heller cases, including McDonald, NRA v. Chicago, Nordyke and Maloney, have argued that the Second Amendment, in addition applying to federal jurisdictions, should also be applied against state and local governments, using a judicial process called Selective Incorporation. Selective Incorporation involves convincing the court that a right is "fundamental" by being “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions” as defined most recently in the 1968 Supreme Court case Duncan v. Louisiana.
 
In addition to claiming the Second Amendment should be incorporated through the selective incorporation process, McDonald is unique among post-Heller gun cases in that it is asking the court to overturn the 1873 Slaughter-House Cases. Slaughter-House determined that the 14th Amendment's Privileges or Immunities Clause did not apply the Bill of Rights to the actions of states (and by extension, local governments). If overturned, the Selective Incorporation process would be moot and unnecessary, as the entire Bill of Rights, including the 2nd Amendment, would be applied against the states.
 
In attempting to overturn Slaughter-House, this case has garnered the attention and support of liberal legal scholars interested in its potential application in areas outside of firearms law. Their interest is that if Slaughter-House is overturned, it is possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would be applied against the states automatically.
 
McDonald Petition for Certiorari
http://www.chicagoguncase.com/wp-content/uploads/2009/06/mcdonald_cert_petition1.pdf
 
NRA Petition for Certiorari
http://www.scotusblog.com/wp/wp-content/uploads/2009/06/certpetitionchicago.pdf
 
Chicago Brief in Opposition to Cert Petition
http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_bio.pdf
 
 
Amicus curiae briefs
 
Thirty-three amicus curiae ("friend of the court") briefs for this case have been filed with the Clerk of the Supreme Court.[16]
One of these briefs was filed by U.S. senators Kay Bailey Hutchinson (R, TX) and John Tester (D, MT) and U.S. representatives Mark Souder (R, IN) and Mike Ross (D, AR) asking the Supreme Court to find in favor of the petitioners and rule that the Second Amendment does apply to the states.[17] The brief was signed by 58 senators and 251 representatives, more members of Congress than any amicus curiae brief in history
 
 

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I'd like to see this ending with CPL reciprocity in all of Illinois as well as NY and other rights denied states.

I'd like to also see as a result of a positive conclusion suits brought to scrap the illegal $105 CPL fee.

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mikestilly wrote:

I'd like to see this ending with CPL reciprocity in all of Illinois as well as NY and other rights denied states.

I'd like to also see as a result of a positive conclusion suits brought to scrap the illegal $105 CPL fee.

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As i've said before, "Alaska carry" should be the norm.

Now would be a hard time to get rid of the fee, let alone the entire licensing process. Hopefully they don't try and raise the fee. Its already $205-$300 for the entire process, let alone the cost of a firearm and holster.

Hopefully this case in Chicago will start a trend across the nation.

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Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

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Michigander wrote:

Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

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Agreed... although if this case goes our way it seems like it will be the equivalent of 'Federal Preemption', as anything the State does that is more restrictive than the Bill of Rights would, by definition, be 'infringing'.

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Evil Creamsicle wrote:

Michigander wrote:

Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

Click to expand...

Agreed... although if this case goes our way it seems like it will be the equivalent of 'Federal Preemption', as anything the State does that is more restrictive than the Bill of Rights would, by definition, be 'infringing'.

Click to expand...

But wouldn't that in essence be everything restrictive?

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mikestilly wrote:

Evil Creamsicle wrote:

Michigander wrote:

Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

Click to expand...

Agreed... although if this case goes our way it seems like it will be the equivalent of 'Federal Preemption', as anything the State does that is more restrictive than the Bill of Rights would, by definition, be 'infringing'.

Click to expand...

But wouldn't that in essence be everything restrictive?

Click to expand...

Including banning machine guns?:celebrate



....too soon?

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Evil Creamsicle wrote:

mikestilly wrote:

Evil Creamsicle wrote:

Michigander wrote:

Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

Click to expand...

Agreed... although if this case goes our way it seems like it will be the equivalent of 'Federal Preemption', as anything the State does that is more restrictive than the Bill of Rights would, by definition, be 'infringing'.

Click to expand...

But wouldn't that in essence be everything restrictive?

Click to expand...

Including banning machine guns?:celebrate

 

....too soon?

Click to expand...

Machine guns are no longer banned in Michigan. Where have you been? That was corrected a while ago thanks to Mike Cox. You can have NFA registered machine guns transfered to Michigan no problem.

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I know... I was talking about how stupid the federal ban is.

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here is the transcript of the oral arguments. looks pretty good so far.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1521.pdf

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mikestilly wrote:

Evil Creamsicle wrote:

mikestilly wrote:

Evil Creamsicle wrote:

Michigander wrote:

Constitutionally speaking, I think that acceptable can be defined as nothing less than unlicensed OC and maybe still licensed CC legal being legal anywhere and everywhere for able bodied adults who aren't intoxicated or otherwise incapable of responsibly carrying.

I do agree with Mike. The fee's for rights have to go.

Click to expand...

Agreed... although if this case goes our way it seems like it will be the equivalent of 'Federal Preemption', as anything the State does that is more restrictive than the Bill of Rights would, by definition, be 'infringing'.

Click to expand...

But wouldn't that in essence be everything restrictive?

Click to expand...

Including banning machine guns?:celebrate



....too soon?

Click to expand...

Machine guns are no longer banned in Michigan. Where have you been? That was corrected a while ago thanks to Mike Cox. You can have NFA registered machine guns transfered to Michigan no problem.

Click to expand...

The problem is the $18,000 that a pre 5/86 MG costs.

Why only pre 5/86?

If that restriction was lifted, I could buy a M4A2 at the more reasonable price of about $800.

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Profound statements such as below... Still reading

Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.

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I fail to see how anyone qualified to be a judge could read "shall not be infringed", and, "the right of the people" and not know what that means.

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BTW, how long do you think it will take before a final scotus decision is made?

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stainless1911 wrote:

BTW, how long do you think it will take before a final scotus decision is made?

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I read a final decision isn't expected until some time in June.

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I've read further and the rebutal is definitetly on the defensive about 3/4 of the way through. THere are alot of I .. I ... I's and the favor is on the part of 2A. The arguments and the justices conversations on the bill of rights and 1A & 2A & 14A were very very interesting. Make's me want to read Levin's book again.

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This is like 2A porn to me. They have him on the ropes here and I love it. It's like a 2A soap opera.

CHIEF JUSTICE ROBERTS: Well, sure, and it's still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments you make against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.

CHIEF
JUSTICE ROBERTS: And so the arguments you make, as well, given this context, you should not be able to have concealed carry -- well, maybe that's right. But that doesn't mean you don't incorporate the Second Amendment to allow you to enforce that type of regulation.

MR. FELDMAN: No, I don't think so. The argument that I am making is that States and local governments under the political process, which as far as we know, if the only issue had been self-defense, the framers would have been satisfied to leave this to the States and to leave this to the political process, not to put it in the Constitution -- that -- that -- that as far as the right to self-defense goes, that is something that has always been effectively regulated through the political process and especially at the State and local level. And through our history, as technology has changed, State and local regulation has altered to draw the balance that has to be drawn.

JUSTICE ALITO: And your position is that a-- a State or local government could completely ban all firearms?

MR. FELDMAN: If the State and local government did that, I think would it raise two questions. One question would be, there is always review under the Due Process Clause and under the Equal Protection Clause for provisions that are arbitrary. And I would want to know why a State had done that. It is certainly relevant that in the last 220 years no State has done that or even come close, and in fact as the briefs from the other side of the case from some of the States show, they are quite the opposite direction. But the second -


JUSTICE
SCALIA: I -- I don't understand.
JUSTICE KENNEDY: What is the due process liberty -JUSTICE
SCALIA: What basis would there be to -- to deny that?
MR. FELDMAN: Well, there's always -JUSTICE
SCALIA: Firearms kill people is what the States say, and -- and we ban it.
MR. FELDMAN: Right and that has -JUSTICE
SCALIA: Other countries have done that.

MR. FELDMAN: It has not led to States doing it in -- in this country.

JUSTICE SCALIA: But if they did do it, I think would you have to say it's perfectly okay.
MR. FELDMAN: No, the second -- there would be two rights questions actually. One would be was arbitrary or is that actually based on a reasoned -that
-- sound -JUSTICE
SCALIA: The reason is guns are dangerous.

MR. FELDMAN: I -- the Court would just say that what Heller held was if you look at the meanings that the words in the Second Amendment had, the common meaning -- as the Court said in the Heller opinion -the
common meanings that the word had in 1791, it imposed limitation on the State. It took a preexisting right that had not been -- was not codified in the Constitution, and it said, this self-defense right we need in the Constitution in order -- in order to protect the militia against being disarmed by the Federal Government.
CHIEF JUSTICE ROBERTS: That sounds an awful lot to me like the argument we heard in Heller on the losing side.

MR. FELDMAN: Well, it's actually what the Court said in its opinion. What the Court said in its opinion is the reason it was codified was the concern that the framers had with the -- that the Federal Government might disarm the militia. Not self-defense. Self-defense according to the Court in Heller, quote, "had little to do with the codification of the right."

JUSTICE SCALIA: They said that is the reason it was codified. They did not say that that is the function of what was codified. The function of what was codified was to enforce the traditional right of the people to bear arms.

MR. FELDMAN: And that that -- -JUSTICE
SCALIA: And to say that that wasn't the reason it was codified doesn't say anything about what it consists of.
MR. FELDMAN: That -- that's correct, and I'm not arguing today about what it consists of, but the point being that this was a right that had been -- the framers as far as we know would have been satisfied to leave to the political process if it was just a question of the feature of it. Today--

JUSTICE ALITO: Let me see if I understand

your argument. I thought you said a minute ago that if a State or local government were to ban firearms completely, this Court might hold that that violates substantive due process because the right to use a firearm for self-defense is -- might be held to be implicit in the concept of ordered liberty; is that right?
MR. FELDMAN: That is correct.
JUSTICE ALITO: And -- but I thought you began by saying that the right to keep and bear arms is not implicit in the concept of ordered liberty.
MR. FELDMAN: The right to keep and bear arms that was recognized-- I don't actually think the right to keep and bear arms itself is. Perhaps the right to self-defense is, and then like other rights, similar rights, if the Court were to hold that that is constitutionally protected, the question would be is the State now giving you sufficient means to exercise that right? Not whatever means you want but sufficient means so that you reasonably can exercise for that right. I would think that would be the only way that that kind of analysis could go if you start off from self-defense.
JUSTICE SCALIA: Mr. Feldman, let me take your argument at -- at its face value. Let's assume that the only reason it is there and the only purpose it

serves is the militia purpose. Isn't that militia purpose just as much defeated by allowing the States to take away the militia's arms as it would be by allowing the Federal Government to take away the militia's arms?
MR. FELDMAN: Yes, but I -- that -JUSTICE
SCALIA: Then so -MR.
FELDMAN: But that -JUSTICE
SCALIA: -- even if you assume that the whole thing turns around the militia prologue, that prologue is just as -- just as important with respect to the State's depriving the people of arms.
MR. FELDMAN: But I don't think the argument -- the primary argument that is being made today, that this is implicit in the concept of ordered liberty or sufficiently fundamental or whichever other formulas -

JUSTICE SCALIA: You are switching horses now.
MR. FELDMAN: No, I'm not.

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The justice put their arguements in a nutshell here and made it black and white and I bet he was peeing his pants.


JUSTICE
BREYER: Well, suppose it is. Suppose it is; assume for argument's sake that it is. Still, I take from what you are saying that -- let's make up an imaginary importance of ordered liberty chart, and we give it to James Madison and the other framers. And he would say insofar as that right to bear arms is important for the purpose of maintaining the militia, it's high on the ordered liberty chart. Insofar as the right to bear arms is there to shoot burglars, it's low on the ordered liberty chart.
And if that's what they would say, it's conceivable that part of this amendment would go through and be incorporated, namely that part which would prevent a law that would disarm people to the extent they couldn't form militias. But that part which would disarm people to the extent that they couldn't shoot burglars, that would not be incorporated.


MR. FELDMAN: I -- I don't think -- I don't think the Court would. And what I was really responding to Justice Breyer was, we understand that the Second Amendment is in the Constitution and binds the Federal Government, but it has always been understood from 1868 on, that before an amendment applies to the States you need something more than just finding that it is in the Constitution.


CHIEF JUSTICE ROBERTS:
I'm trying to get you to take a position on whether or not you want us to not only pick and choose among which amendments are part of our abstract notion of ordered liberty, or if you want us also to take amendments that might be in and refine them and shave them off a little bit and say well, this part of the amendment is in, and this part isn't.

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I'm definitely reading this 2 or 3 more times but check this out.

JUSTICE SCALIA: "Subject to such regulation" certainly excludes banning them entirely, which is what you assert can be done.
MR. FELDMAN: No, I think that -

JUSTICE SCALIA: What's the purpose of a State constitutional guarantee which has at the end of it "subject to such regulation as the legislature may proscribe," if that regulation includes banning it entirely? That -- that would make a nullity of the constitutional requirement.

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It was a good read for sure. I've already read it twice and had dinner between.